Wednesday, 26 December 2018

Whether objection to quit notice if not taken specifically is deemed to have been waived?

 Thus when in paragraphs 1, 6 and 9 of the written statement the applicant did not dispute that the suit notice terminated the tenancy of the applicant nor did the applicant contend that the notice was illegal in any manner being contrary to section 106 of the Transfer of Property Act, in such a situation, the consequence in law is that the applicant acquiesced in the suit notice and waived its right to contend that the suit notice is illegal. The applicant thus was not permitted to take a contrary position. The law in this regard is well settled. In Dharampal v. Harbansingh 2006 (9) SCC 216 the Supreme Court has held that objection to the invalidity or insufficiency of the notice should be specifically raised in the written statement failing which it will be deemed to have been waived. It was held that in the absence of a specific plea in the written statement in regard to the said objection, such a plea would be deemed to have been waived by the appellants-tenant therein. Their Lordships in paragraphs 7 and 8 of the decision observed thus:

"7. Learned counsel for the appellants submits that none of the two recitals contained in the notice can fulfill the requirement of section 106 of the Transfer of Property Act. One recital in the notice terminates the tenancy from the date of issue of notice. The other one requires the tenant to vacate the premises within 15 days from the date of receipt of the notice. Both are bad in the light of the requirements spelled out by section 106 of the Transfer of Property Act. The learned counsel seems to be right in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. In the present case, the only objection taken in the written statement is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant." The thrust of the plea raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The plea so taken has been found devoid of merit by the High Court and the courts below. The plea that the notice was insufficient in the sense that did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy has not been take in the written statement.

8. Obviously, for want of specific plea in the written statement, the trial court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application (ST) No. 4255 of 2018

Decided On: 02.04.2018

 Universal Cables Ltd. Vs.  Laxmi Properties Ltd.


Hon'ble Judges/Coram:
G.S. Kulkarni, J.

Citation: 2018(6) MHLJ 715.
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